Can Wall Street police itself?

NYSE's trading turmoil heightens regulatory scrutiny

DavidWeidner

NEW YORK (MarketWatch) -- Even as regulators mull adding muscle to their crackdown on Wall Street, the New York Stock Exchange has found itself once again at the center of another blow-up.

Faced with scandal after scandal, the Securities and Exchange Commission is looking at whether the NYSE and other major institutions in securities industry are capable of policing themselves.

Federal prosecutors on Tuesday indicted 15 former and current floor specialists as part of an ongoing probe into improper trading at the Big Board. The regulators say traders made a combined $14 million in profits as investors lost $20 million as a result of the trading. See full story.

But an overlooked part of the announcement by U.S. officials was an agreement to settle charges that the exchange failed to catch the trading abuses. Under the pact, the Big Board agreed to set up a $20 million fund for internal enforcement, including an experimental audio and video surveillance on the floor.

The failure of the NYSE to police itself has drawn attention to what critics say is the sorry state of self-regulatory organizations, including the Big Board and the National Association of Securities Dealers.

Although the SEC stopped short of an outright takeover of regulation at the NYSE, the terms of the settlement will give the nation's top market watchdog more of a close-up view of the exchange's in-house cops.

Moreover, even before the trading indictments surfaced, the SEC was poised to impose new rules that would strip away the autonomy that the Big Board and the NASD have enjoyed for decades.

The NYSE will also be required to turn over its enforcement records in the coming years to the commission, according to Bruce Karpati, assistant director of the SEC's northeast region.

"Self regulatory organizations must fulfill their obligations to enforce the rules, and if they do not, the commission will not hesitate to bring action against them," Karpati said in an interview.

A bigger SEC

The indictments and rebuke of the NYSE has refueled critics who say the NASD and NYSE regulatory arms need to be scrapped in favor of an SEC with greater oversight powers.

"Not only don't the self-regulatory organizations see what's under their noses, but their public relations staffs seem satisfied to churn out inappropriate excuses," said Bill Singer, a securities lawyer.

Other critics such as T. Sheridan O'Keefe, president of the National Association of Investment Professionals, say that raising fees and transferring more oversight powers to state officials would be a more practical alternative than expanding SEC.

"This thing is riddled with termite holes and needs to be replaced," O'Keefe said.

The indictments against the specialists and action against the NYSE point to the reason for splitting off the regulatory arm from the exchange's top management. Under former chairman John Reed, the NYSE created a new chief regulator who reports to the board, not the CEO or chairman.

That was in direct contrast to the old system, under which the chairman, previously Richard Grasso, was both business leader and top regulator at the NYSE. It was under Grasso, regulators say, that the exchange failed to police itself.

Between 1999 and 2003 the Big Board's regulatory structure broke down on three levels -- surveillance, enforcement and punishment of abuses on the trading floor, according to FBI officials.

The electronic detection system the Big Board installed in the 1980s to find trading abuses was tuned so poorly that an enormous amount of questionable trades were found. If pursued, those trades could be easily explained away, regulators said in their complaint.

But in nearly every case, NYSE police failed to follow up.

"They would find instances beyond those instances," Karpati said. "There was no investigation and no disciplinary action. If there was discipline it was minor."

Unknown cause

What's unclear is why the regulatory arm at the NYSE was so ineffective. Some say the unit lacked resources needed for the job. Others point the finger squarely at the exchange's management under Grasso.

Grasso shielded certain floor traders and specialists from prosecution, these observers say, and wielded enforcement as a way to keep constituents in line.

If they know the root of the problem, regulators aren't saying. David Kelley, who is prosecuting the individual specialists in the case declined comment when asked whether members of the NYSE regulatory staff, including Grasso, might face charges.

Kelley also wouldn't comment when asked whether the 15 specialists charged with criminal securities fraud might be offered deals to give incriminating information about NYSE regulators or their supervisors.

Whatever the cause of the impotency of NYSE regulators, the deficiencies cost investors at least $135 million, according to the SEC, and "it allowed the conduct to go unchecked for years," said Lucian Gandolfo, a special agent with the FBI.

The new NYSE

As much as regulators and prosecutors spent the earlier part of the week tearing down the exchange under Grasso, they also went out of their way to praise the changes inside since his departure.

It's not just that the regulatory arm no longer reports to the head of the exchange. The exchange also has added regulators, notably, Richard G. Ketchum, a former chief counsel for Nasdaq and Citigroup.

Prosecutor Kelley called the NYSE's ability under Ketchum to self-regulate "very viable" and "quite effective." But when pressed, Kelley acknowledged that crooks "can figure ways to get around the system."

Ketchum declined to be interviewed for this story.

In any case, events in the past couple of years may have already forced the SEC's hand. Proposals aimed at creating greater accountability are on the way.

In November, the nation's top market watchdog gave preliminary approval to new disclosure rules that would require the NASD and NYSE to share more information about their inner workings.

The rules would also bar individual exchange members from holding ownership and voting levels of more than 20%, as well as a provision requiring exchanges to file quarterly and annual reports about their regulatory activities with the SEC.

An SEC spokesman said the public comment period has passed, and there is no date at which the commission will review the rules again.

In the meantime, while the agency weighs those proposals, criticism of the exchanges' self-policing has heated up. And with the indictments of 15 Big Board trading specialists, it looks increasingly likely that Wall Street's internal affairs will be under government scrutiny for years to come.

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